In Part 2 of this article we look at why Confidentiality is the corner stone of Mediation, How Mediation is a Flexible User-friendly Format and why it is a great way to “Reality Check” a clients position.
Confidentiality – The corner stone of Mediation
We can never over-emphasise both the importance and benefit of confidentiality in the process. By law and by contract – the Agreement to Mediate – a mediation is a settlement conference which forecloses later disclosure. Also, by the terms of the mediation agreement, the mediator, his/her notes, records, and work product cannot be subpoenaed for a later trial or deposition should the case not settle. Preserving absolute confidentiality is vital to the process. Likewise, mediation sessions are closed to all outsiders, including the press. This is not true, however, if the case is litigated in the courtroom
There is another aspect of confidentiality which is important to the success of the process. When the mediator meets in private caucus with each side, s/he can give assurance that particular matters raised and discussed will not be disclosed to the other side. This permits the parties to make settlement proposals, float figures, and suggest creative ways to reach resolution, knowing that the mediator will not disclose such to the other side. The mediator can take a proposal and discuss it with the other side as his/her own to see how the parties react. In this way, the party originating the proposal has not made a commitment to the idea and can give it further consideration.
In floating a settlement figure given by one of the parties, for example, the mediator can ask the other side whether they would consider it if the first party would consider it. In this way, the first party is not committing to the figure. If the other party knew that the figure came from its opponent, the opposing party likely would bid off the figure and not give consideration to accepting it. In other words, the mediator can “test the waters” without requiring commitments from either side.
Another important aspect of confidentiality is that a party in caucus can use the mediator as a sounding board to test his case. Getting a mediator’s reaction in confidence can be quite helpful to a party in evaluating the case. It can act as a reality check.
Mediation – A flexible user-friendly format
The user-friendly character of mediation lends itself to a very flexible format. In fact, the mediation process can be adapted to almost any contingency required in a particular case. There are no rules of evidence, established protocol, or precedent that must be followed. For example, if an expert witness is needed to verify a certain point or position, he can simply be called on and asked what his evidence/opinion is. A doctor, engineer or other expert might be called and asked for an opinion concerning a certain matter.
Mediation is an excellent forum for parties to vent and express their feelings. A mediator is quite willing to listen empathetically and, in essence, give the parties their day in court. When the parties have released their emotions, there is a decided change in their demeanor, and the mediation can become quite productive. Many people just want to be heard by someone.
Mediation is an excellent vehicle for helping the parties continue their relationship if this is important. In employment situations and business the parties may have to continue working together afterwards. Legal proceedings can destroy or undermine that relationship because of the nature of the courtroom. By bringing the parties together in mediation, where an effort is made to heal the relationship rather than just resolve a dispute, a difficult problem can be overcome and a healthier working relationship established. Employers, who are striving to comply with the law and avoid the antagonisms generated by litigation, welcome the opportunity. Some companies are including mediation clauses in their collective bargaining agreements and employment contracts. Parents who have separated need to be able to communicate about and in the best interests of their children – mediation can help hugely.
The mediator can help the parties craft creative settlements. Because any settlement entered is contractual, the parties can agree to any terms they wish as long as they do not violate public policy. An experienced mediator, sensitive to the needs of the parties, can help them craft a settlement that will accomplish much more than what a judge, jury, or arbitrator could do. For example, the parties might agree to an apology or a letter of commendation which it might not be possible for them to do publicly. The possibilities are limited only by the creativity of the parties.
A Great way to “Reality Check” a clients position
The mediator can help the solicitors and barristers get their clients under control when they have unreasonable expectations. Often the lawyers will request mediation because they are having difficulties with their clients. Because the mediator can ask the solicitor and barrister what the weaknesses are in the case, in private caucus, they are given an opportunity to discuss them in front of the client. Up to this time, the client might have refused to even consider weaknesses, but because the mediator is asking, the client is forced to listen. Likewise, the mediator can ask the lawyer in confidence what might happen in court in both the best and worst case scenarios. Again, the client is required to hear what the worst case is, and it may come as a shock. Certainly, it can be a reality check. As the mediation progresses, the mediator can reinforce the concerns that the solicitor or barrister has. With both having reservations about the case, most clients are willing to begin compromising and work to resolution.
The mediator can also help the lawyer in another way. By noting the fine work the solicitor is doing, if this is the case, the mediator can reinforce the solicitor’s position with the client. Many times clients do not appreciate how skilled and creative their barristers and solicitors are, and when this is pointed out by the mediator, they have a new appreciation for the way they are being represented. Realizing this, clients are more willing to listen to their legal representatives when asked to make that final compromise to settlement.
Finally, the mediator can help representatives by deflecting any criticism or anger that might be engendered as the mediation progresses. Rather than allowing the solicitor be criticized by the client, the mediator can act as the lightning rod so that the solicitor-client relationship is not undermined. This is important, because it is the solicitor or barrister who will generally get the client to make the final move to settle. If the lawyer-client relationship has been undermined, this will become more difficult.
These are just some of the particular advantages of Caucus Mediation. As the practice of Mediate Ireland has developed we have become ever-increasingly convinced that it is the most successful model particularly when considered in the context of our recommendations that the process works best when parties are represented and accompanied by their solicitors and/or barristers and that the process be by reference to a specific timeframe – usually by reference to one day.
Part 1 of this article looks at, Caucus Mediation, Body Language and The art of Peacemaking. CLICK HERE to read article
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE